Zink v. Contris

• Decision Date: 20 June 1961
• Citation: 186 N.E.2d 865,116 Ohio App. 95
• Parties: , 21 O.O.2d 372 ZINK, Appellant, v. CONTRIS, Jr., Appellee. *
• Court: Ohio Court of Appeals

Page 95

116 Ohio App. 95

186 N.E.2d 865, 21 O.O.2d 372

ZINK, Appellant, v. CONTRIS, Jr., Appellee. ^*

Court of Appeals of Ohio, Third District, Hancock County.

June 20, 1961.

Day & Berkman, Cleveland, for appellant.

Marcus C. Downing, Findlay, and Doyle, Lewis & Warner, Toledo, for appellee.

GUERNSEY, Presiding Judge.

This appeal is on questions of law from a judgment of the Common Pleas Court entered in a negligence action pursuant to a verdict for the defendant, the verdict being general in form and not having been tested by interrogatories.

Although the plaintiff-appellant assigns error in four particulars, under the prerogative bestowed upon us by statute (Section 2505.21, Revised Code) we will disregard those assignments not argued in his brief. The remaining two assignments claim error of the trial court in restricting cross-examination of the 'key' defense witness to prevent plaintiff from developing the interest of the witness in pending litigation growing out of the same collision, and error of the trial court in refusing four requested instructions to the jury before argument.

The 'key' defense witness referred to was the driver of defendant's truck involved in the collision with a bus driven by plaintiff. The following cross-examination appears in the bill of exceptions pertaining to appellant's claim of error:

'Q. Now Mr. Hayes, you have pending in this courthouse a law suit growing out of the collision with which we are now concerned don't you? A. Yes.

'Q. And in that law suit, you are trying, are you not, to make the action of Mr. Zink driving the Greyhound bus the basis for recovery on your part; isn't that true? A. His negligence. Yes.

'Q. That is what you are trying to do? A. (Witness nodding indicative of yes.)

'Q. And it is also a fact, is it not, that you are the defendant in another law suit in this courthouse; is that not so? A. I don't know. I can't remember.

'Q. You can't remember whether you were sued or not? A. Oh yes. The other day I got a summons.

'Q. Yes. As a matter of fact, December 8 or thereabouts Lula Mae Skinner started an action in this court? A. Yes.

'Q. And it is a fact that in that law suit, you are charged with cutting out across the road in front of the bus; isn't that so? A. I don't know. Mine just says 'summons.'

'Mr. Downing: I object and ask to have withdrawn.

'Mr. Day (counsel for appellant): He testified he got a summons.

'Mr. Downing: Personally I don't think he even knows anything about the law suit except that he got a summons.

'Court: It is apparent that is all he knows about it, and furthermore the jury is instructed as to whether or not there may be law suits pending in this court has nothing to do with this particular trial.

'The jury will be further instructed in that respect.

'Mr. Day: With respect to credibility?

'Court: As far as attacking his credibility, of course, you may examine.

'Q. Now sir, you will concede will you not, it is better for you personally if your story about Mr. Zink is believed isn't that right? A. Well it is the truth.

'Q. Now that isn't the question. It is better for you if it is believed? A. Oh undoubtedly. Yes.

'Mr. Downing: He has answered the question I think.

'Q. And you have not seen the petition filed in this case at all; is that right? A. No.

'Q. After you got your summons, you didn't want to know what you were being sued for?

'Mr. Downing: Just a minute if Your Honor please. He is going too far.

'Court: Sustained.

'Q. In any event, the facts is, you did not come down to the courthouse and look at that?

'Mr. Downing: Object.

'Court: Sustained.

'Mr. Downing: I wish you'd direct him to discontinue that practice.

'Court: I assume it will be.'

Thereafter, in his general charge the court instructed the jury as follows:

'Statements that were stricken by the court and which you were instructed to disregard are not evidence and must be treated as though you never heard them.

'* * *

'To determine the preponderance of the evidence you must decide what weight shall be given to the evidence. To do this you must determine the credibility of the witnesses. In determining their credibility you may consider * * * their reasonableness and the probability of their story; the opportunity they had to see, hear and know the things concerning which they testified; * * * their intelligence, interest and bias, if any ; together with all the circumstances surrounding their testimony. * * *'

The portion of the partial bill of exceptions above quoted shows that after the trial court's admonition to the jury that the pendency of other law suits had 'nothing to do with this particular trial,' the trial court specifically permitted appellant to examine as to credibility, that he was permitted to examine further as to the pendency of law suits in which the witness was involved, and that the witness conceded that it was undoubtedly better for him if his testimony was believed. The general charge as to statements 'stricken by the court' and as to credibility of witnesses was proper. On this state of the record it does not appear that the appellant was unduly limited in his examination as to bias and credibility so as to constitute error, or that the court erroneously instructed the jury with reference thereto.

As to the four requests to charge before argument, refused by the trial court, one pertained to the measure of damages in the event of a determination of liability, one pertained to the standard of care of the plaintiff when confronted by a situation of danger, one pertained to the standard of care which plaintiff was required to exercise for his own safety, and the fourth pertained to contributory negligence with respect to keeping a lookout for danger, and the anticipation of negligence of another.

It is the general rule that in a civil case the refusal to give a properly requested instruction before argument is ground for reversal, if such instruction correctly states the law, is pertinent to the issues and the evidence, and if the same matters have not been covered by other charges...